Crime & Punishment
Mon, 30 Sep 1996
KOJO TSIKATA v. NEWSPAPER PUBLISHING PLC
KOJO TSIKATA v. NEWSPAPER PUBLISHING PLC  EWCA Civ 618 (30th September, 1996)
IN THE SUPREME COURT OF JUDICATURE QBENF 94/1544/C
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. J. Sumption QC) Royal Courts of Justice Strand London WC2
Monday, 30th September 1996
B e f o r e :
LORD JUSTICE NEILL LORD JUSTICE WARD LORD JUSTICE THORPE ---------------
KOJO TSIKATA Plaintiff/
NEWSPAPER PUBLISHING PLC Defendant/ Respondent
Handed Down Judgment prepared by
Smith Bernal Reporting Limited
180 Fleet Street London EC4A 2HD
Tel: 0171 831 3183 Fax: 0171 831 8838
(Official Shorthand Writers to the Court) ---------------
MR. M. TUGENDHAT QC and MR. R. PARKES (instructed by Messrs. Bindman & Partners, London NW1) appeared on behalf of the Appellant Plaintiff.
MR. S. KENTRIDGE QC and MR. A. CALDECOTT QC (instructed by Messrs. Oswald Hickson, Collier, London EC4) appeared on behalf of the Respondent Defendant.
J U D G M E N T
(As Approved by the Court) Crown Copyright
Monday, 30th September 1996
LORD JUSTICE NEILL:
For about eleven years between 1981 and 1992 the government in <
On 18 June 1992 the Independent newspaper published, among a number of articles on foreign affairs, an article about the forthcoming election under the heading "Can populist Rawlings win the peoples' votes?" The article had the further heading "Supporters of the Ghanaian military leader are preparing the ground for a return to democracy, writes Karl Maier in Accra." In the latter part of the article reference was made to the fact that many people wanted a change from the military rule which Mr. Rawlings personified. The article continued:
"Ghanaians, whose nation symbolised the hopes and dreams of African nationalism and independence from Britain 35 years ago, are embarrassed at being ruled by the military, especially one which, in Ghanaian terms, has been a fairly bloody affair.
While ordinary Ghanaians giggle at Flt. Lt. Rawlings' renowned populist touch, such as working alongside farmers to bring in the harvest, his many opponents are sure to evoke the memories of the scores of people, including three heads of state, executed by his regime. After taking power for the second time Flt. Lt. Rawlings and his PNDC set up Committees for defence of the revolution and a system of public tribunals which the New York - based human rights group, Africa Watch, has described as ?a mockery of justice'."
It is the next paragraph in the article which forms the subject matter of the present proceedings:
"In June 1982, three High Court judges were kidnapped and executed at an army shooting range. A special inquiry into the killings recommended the prosecution of ten people, including Flt. Lt. Rawlings' close aide, Captain (Retired) Kojo Tsikata, who was named as ?the master mind' of the plot. Five people were prosecuted and executed, but not Captain Tsikata."
At the time of the publication of the article Mr. Tsikata had responsibility within the PNDC for foreign affairs and national security.
The article and in particular the paragraph to which I have drawn attention came to the notice of Mr. Tsikata. He instructed solicitors and on 26 March 1993 a writ was issued against Newspaper Publishing Plc, the publishers of the Independent. In paragraph 4 of the statement of claim, which was served on 8 April 1993, it was alleged that the words in the paragraph in which Mr. Tsikata was named meant and were understood to mean in their natural and ordinary meaning "that [Mr. Tsikata] had in June 1982 masterminded the kidnap and murder of three High Court judges and that he had escaped being prosecuted and executed for his crime".
On 11 June 1993 the publishers served their Defence. In paragraph 4 of the Defence it was pleaded by way of admission that the words meant and were understood to mean that a special inquiry to be set up by the government of <
"71. With all these inconsistencies in his statements it will be difficult to use Amartey Kwei as a credible witness against Captain Tsikata. Moreover the only material witness L/Cpl. Amedeka who could connect Captain Tsikata to the crime of conspiracy to commit murder has denied ever obtaining any note from Amartey Kwei and most of the allegations made by Amartey Kwei against Captain Tsikata have been denied by L/Cpl. Amedeka.
72. What is more the evidence of Amartey Kwei taken in its entirety cannot even implicate Captain Tsikata in the crime of conspiracy to kidnap much more to commit murder.
73. I am unable to find on record any other strong corroborative evidence which will enable the prosecution to sustain a case to answer against Captain Tsikata at the close of the case for the prosecution when they are charged together. Even if Captain Tsikata is charged separately the evidence of Lance Corporal Amedeka will neutralise the little effect Amartey Kwei's evidence may have on the case against Captain Kojo Tsikata."
On or about 31 May 1983 the Attorney General held a press conference at which he released to the public the S.I.B.'s final report as well as his own written comments on the report. Both the S.I.B's report and the Attorney General's comments were reported in the Ghanaian press during the course of the next few days. Mr. Amartey Kwei, L/Cpl. Amadeka and three other persons were subsequently prosecuted for conspiracy to murder the three High Court judges and the retired army officer. The accused, other than Mr. Kwei, were also charged with murder. The trial took place before a Public Tribunal. At the conclusion of the trial all five accused were found guilty of the charges alleged against them and were sentenced to death. Lance Corporal Amadeka was not present at the trial as he had evaded arrest.
The trial was held in public. Mr. Tsikata gave evidence for the prosecution. In the course of his evidence Mr. Tsikata denied having ordered Mr. Kwei to commit the murders. Mr. Kwei was invited by the Tribunal to cross examine Mr. Tsikata to challenge this evidence, but he declined to do so. Later, however, he made an unsworn statement from the dock, in the course of which he repeated what he had said about Mr. Tsikata's role in the crime. The Tribunal concluded that Mr. Kwei's failure to cross examine was to be treated as an admission of Mr. Tsikata's evidence.
On 18 August 1983 Mr. Kwei was executed by firing squad. Immediately before his execution he made statements confessing that he had invented his allegations against Mr. Tsikata. It seems that this confession was made first to a clergyman who attended Mr. Kwei just before his death and later to Flight Lieutenant Rawlings himself, who attended at the execution ground. The conversation with Mr. Rawlings was tape recorded and the tape was subsequently played back at a press conference.
Mr. Kwei's confession was reported in the issue of the People's Daily Graphic dated 22 August 1983.
It is to be noted that Mr. Tsikata himself was not prosecuted, though the allegations against him were considered by the Tribunal.
The Trial of the Preliminary Issue.
The preliminary issue was tried by Mr. Jonathan Sumption QC sitting as a Deputy Judge of the High Court. In his judgment dated 28 October 1994 the judge referred to the events of 1982 and 1983. At page 4 of his judgment he said:
"I make no findings, because I do not need to, about whether the diverse conclusions of the Special Investigation Board, the Attorney General and the Public Tribunal about Captain Tsikata's role were right or wrong. For present purposes all that matters is that those were the views which they expressed."
The judge then turned to consider the law. For this purpose he had to examine both the common law of qualified privilege and the impact of the relevant provisions of the Defamation Act 1952. He referred to the background to the statutory privilege as follows:
"Historically, qualified privilege meant a state of affairs which negatived legal malice and meant that the plaintiff had to prove malice in fact. The classic form of qualified privilege, which depends on a social or moral duty to communicate information and a reciprocal duty or interest in receiving it, was never easy for a newspaper to invoke, because a newspaper necessarily publishes its contents indiscriminately. The courts, however, have always recognised that the reporting of certain matters to the public at large is in the public interest because those matters relate to some aspect of the community's public affairs which it is right should be in the public domain, even if they are defamatory and may be untrue." He drew attention to the fact that at an early stage qualified privilege at common law became attached to judicial and parliamentary proceedings, but that it was uncertain how much further it extended. He referred to the opinion of Lord Uthwatt in Perera v. Peiris  AC1 where he said at 20:
"Reports of judicial and parliamentary proceedings and, maybe, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that a particular report should be published, privilege will attach."
The judge had already set out the relevant provisions of the Defamation Act 1952. Section 7, so far as is material, is in these terms:
"(1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless the publication is proved to be made with malice. ..............
(3) Nothing in this section shall be construed as protecting the publication ... of any matter which is not of public concern and the publication of which is not for the public benefit."
In this case we are concerned with a report of the class identified in paragraph 5 of Part I of the Schedule to the Act of 1952. Paragraph 5 provides:
"A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the government or legislature of any part of Her Majesty's dominions outside the United Kingdom."
It is common ground that the definition of Her Majesty's dominions in paragraph 14 of the Schedule includes <